Sixth and Fourteenth Amendments--Constitutional Right to

Journal of Criminal Law and CriminologyVolume 80Issue 4 Winter Article 11

Winter 1990

Sixth and Fourteenth Amendments--Constitutional Right to State Capital CollateralAppeal: The Due Process of Executing a Convictwithout Attorney RepresentationDonald P. Jr. Zeithaml

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Recommended CitationDonald P. Jr. Zeithaml, Sixth and Fourteenth Amendments--Constitutional Right to State Capital Collateral Appeal: The Due Processof Executing a Convict without Attorney Representation, 80 J. Crim. L. & Criminology 1190 (1989-1990)

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0091-4169/90/8004-1190THE JOURNAL OF CRIMINAL LAw & CRIMINOLOGY Vol. 80, No. 4Copyright © 1990 by Northwestern University, School of Law Printed in USA.

SIXTH AND FOURTEENTHAMENDMENTS-CONSTITUTIONAL

RIGHT TO STATE CAPITALCOLLATERAL APPEAL: THE

DUE PROCESS OFEXECUTING A CONVICT WITHOUT

ATTORNEY REPRESENTATIONMurray v. Giarratano, 109 S. Ct. 2765 (1989).

I INTRODUCTION

In Murray v. Giarratano,' a plurality of the United StatesSupreme Court refused to establish a constitutional right of stateappointed counsel for indigent death row inmates seeking statepostconviction appeals. The plurality argued that equal protectionand due process rights to state appointed attorneys, which the Con-stitution guarantees to prisoners for mandatory appeals, satisfies theaccuracy of the capital process. Denying that tension exists in theprisoner rights line of cases, the plurality embraced the categoricalapproach of earlier assistance of counsel cases to conclude that theConstitution does not mandate state appointed attorneys for statepostconviction appeals.

Basing its argument on the fourteenth amendment, the dissentmaintained that capital cases' special procedural treatments at trialand direct appeal fail to meet the accuracy necessary in a death pen-alty case. The dissent also highlighted the important issues uniqueto collateral appeals and the death row inmate's hardship in raisingthese matters while awaiting his or her execution. The dissent dis-tinguished the right to assistance of counsel cases from the issueunder consideration because those cases had not dealt with thedeath sentence.

This Note argues that the plurality arbitrarily limited a line ofprisoner rights precedent that leads naturally to a constitutionalright to state appointed counsel in death penalty postconviction ap-peals. In light of the realistic inability of death row inmates to pur-

l 109 S. Ct. 2765 (1989).

1190

1990] STATE APPOINTED COUNSEL 1191

sue postconviction relief, the plurality should have extended theright to state appointed counsel to include state postconviction ap-peals. Also, after sampling policy reasons for the right to counsel inpostconviction appeals, this Note illustrates through a simple proce-dural due process analysis the need for fourteenth amendment,rather than legislative, protection of this important safeguard in ourcapital adjudication process.

II. BACKGROUND

Murray is the latest indigent prisoner rights decision involvingthe due process and equal protection clauses2 of the fourteenth andsixth amendments.3 These precedents break into sometimes con-verging, but analytically distinct, right-to-counsel and meaningfulaccess categories. 4 Murray applies these doctrines to state capitalcollateral appeals. 5

A. INDIGENTS' RIGHTS TO STATE APPOINTED COUNSEL

The Court in Powell v. Alabama6 held that indigent prisoners ac-cused of state capital offenses had the right to court appointedcounsel at trial. In that case, the Court held that the right to theassistance of counsel was applicable to the states through the four-teenth amendment because it was part of the "fundamental charac-ter" of due process. 7 Alabama might not refuse to those defendants

2 'Due process' emphasizes fairness between the State and the individual dealingwith the State, regardless of how other individuals in the same situation may betreated. 'Equal protection,' on the other hand, emphasizes disparity in treatment bya State between classes of individuals whose situations are arguablyindistinguishable.

Ross v. Moffitt, 417 U:S. 600, 609 (1974).3 The sixth amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and publictrial, by an impartial jury of the State and district wherein the crime shall have beencommitted, which district shall have been previously ascertained by law, and to beinformed of the nature and cause of the accusation; to be confronted with the wit-nesses against him; to have compulsory process for obtaining witnesses in his favor,and to have the Assistance of Council for his defence.

U.S. CONST. amend. VI.The fourteenth amendment reads in pertinent part: "[N]or shall any State deprive

any person of life, liberty, or property, without due process of law; nor deny to anyperson within its jurisdiction the equal protection of the laws." U.S. CONST. amend.XIV, § 1.

4 The Court suggested this distinction in Pennsylvania v. Finley, 481 U.S. 551(1987) (in rejecting a right to counsel on collateral appeal, the Court split its analysisinto right to counsel and meaningful access divisions).

5 Murray, 109 S. Ct. at 2765.6 287 U.S. 45 (1932).7 Id. at 68.

SUPREME COURT REVIEW

the opportunity to hire counsel or receive state-appointed lawyers.8

The Court's decisions in Gideon v. Wainwright9 and Douglas v.California 10 extended the right to counsel to include criminal casesand mandatory appeals, respectively. I In Douglas, the Court reliedon the due process clause to invalidate a California rule requiring anex-parte judicial hearing before appointing counsel to an indigentdefendant's appeal of right.12 Although the state could have consid-ered some economic differences among litigants,' 3 it might not havesingled out the poor for ex-parte determinations of guilt before theappeal. 14 This procedure would have forced indigents to undergo a"meaningless ritual" without a lawyer, whereas a wealthier defend-ant could have enjoyed the privilege of a significant appeal unbur-dened by the ex-parte determination.' 5

The Court also carved out limitations to this expanding right.An indigent prisoner does not have a constitutional right to counsel

8 Id. at 71.

9 372 U.S. 335 (1963).10 372 U.S. 353 (1963).

11 These decisions followed earlier cases expanding a defendant's right to assistanceof counsel. Johnson v. Zerbst, 304 U.S. 458 (1938) (criminal defendants in federal courthave an automatic right to state appointed counsel). But see Betts v. Brady, 316 U.S. 455(1942) (the sixth and fourteenth amendments do not require state appointed attorneysfor all state criminal trials in all circumstances), overruled, Gideon v. Wainwright, 372U.S. 335 (1963).

12 Douglas, 372 U.S. at 356.13 The Court stated, "But it is appropriate to observe that a State can, consistently

with the Fourteenth Amendment, provide for differences so long as the result does notamount to a denial of due process or an invidious discrimination." Id. (citing William-son v. Lee Optical Co., 348 U.S. 483, 489 (1963); Griffin v. Illinois, 351 U.S. 12, 18(1956)).

14 The Court used far more stirring language in Gideon when it stated, "[n]ot onlythese precedents but also reason and reflection require us to recognize that in our ad-versary system of criminal justice, any person haled into court, who is too poor to hire alawyer, cannot be assured a fair trial unless counsel is provided for him." Gideon, 372U.S. at 344.

15 Douglas, 372 U.S. at 358. The Court stated, "For there can be no equal justicewhere the kind of an appeal a man enjoys 'depends on the amount of money he has.' "Id. at 355 (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)).

The Court later extended the right to counsel line of cases to acknowledge thestate's constitutional duty to provide counsel in misdemeanor cases where imprison-ment could result, Argersinger v. Hamlin, 407 U.S. 25 (1972), and to include a right toeffective counsel. See Evitts v. Lucey, 469 U.S. 387 (1985) (the constitutional right toeffective assistance of counsel extends to the first appeal of right); Strickland v. Wash-ington, 466 U.S. 668 (1984) (the sixth amendment right to counsel includes a right toeffective assistance of counsel); Anders v. California, 386 U.S. 738 (1967) (on appeal ofright, appointed counsel cannot withdraw from a case he deems meritless without firstfollowing certain constitutionally required procedures). Though collateral appeals oftenclaim ineffective assistance of counsel in earlier proceedings, these issues remain outsidethe scope of this Note. The right to an attorney must be decided before a right to effec-tive counsel arises.

1192 [Vol. 80

STATE APPOINTED COUNSEL

for discretionary appeals to state supreme courts or to the UnitedStates Supremd Court. 16 Similarly, in Pennsylvania v. Finley,' 7 theCourt refused to acknowledge a constitutional right to state ap-pointed counsel in state postconviction proceedings.' In thesecases, the Court distinguished trials, in which the state seeks to stripthe presumption of innocence from the defendant, from appeals, inwhich the accused initiates the adjudication to overturn a prior de-termination of guilt. 19 Because in a discretionary appeal the statedoes not force the defendant into court to prove his guilt, its refusalto appoint counsel to him does not violate due process.20

The Court in Ross further noted that the equal protection clauseof the fourteenth amendment 2' does not mandate complete equalityamong litigants. 22 Moreover, state discretionary reviews are not in-tended to address the guilt of the accused.23 Rather, such reviewsusually center on constitutional questions or interesting legal is-sues.2 4 The indigent prisoner's pro se petitions and records of ear-lier materials suffice for this type of review.2 5 Finally, ifdiscretionary appeals garner no constitutional right to counsel, thenneither do collateral appeals.2 6

Thus, prior to Murray, both state and federal courts had right toassistance obligations where imprisonment could result.2 7

Although the right included an appeal of right, it did not encompassdiscretionary or non-death penalty collateral appeals.

16 Ross v. Moffitt, 417 U.S. 600 (1974).

17 481 U.S. 551 (1987).18 Id. In this case, appointed counsel for an indigent prisoner decided his client had

no basis for a habeas corpus petition. Rather than meeting the constitutionally requiredprocess for withdrawing from a wholly frivolous appeal, counsel simply notified theCourt of his intention to drop the case. The Court held that the attorney had no consti-tutional obligation to follow the procedure for withdrawing from an appeal of right.Because a prisoner had no right to appointed counsel for discretionary appeals, he orshe also had no right on collateral attack, and an attorney need not follow a constitution-ally mandated procedure before withdrawing. Id. at 557.

19 Ross, 417 U.S. at 610.20 Id. at 611.21 See supra note 3 for the text of the fourteenth amendment.22 Ross, 417 U.S. at 611 ("[u]nfairness results only if indigents are singled out by the

State and denied meaningful access to the appellate system because of their poverty"(citing Douglas v. California, 372 U.S. 353 (1963)).

23 Id. at 615.24 Id.25 Id.26 Pennsylvania v. Finley, 481 U.S. 551 (1987).27 See Scott v. Illinois, 440 U.S. 367 (1979) (the right to assistance of counsel does

not extend to a case in which imprisonment was authorized but not imposed).

1990] 1193


B. INDIGENT DEFENDANTS' MEANINGFUL ACCESS RIGHTS

A parallel line of cases beginning with Exparte Hull,28 assures toan indigent prisoner the right to communicate with a court. Ac-knowledging both due process and equal protection arguments, theCourt later extended this right to include documents necessary infiling direct appeals and inmate legal assistance. 29 These cases com-bined with the assistance of counsel precedents to define an indi-gent prisoner's ability to access and use the courts.

In Bounds v. Smith,30 the Court harnessed much of the meaning-ful access and right to counsel precedent to obligate states to estab-lish either law libraries or assistance of legally trained individuals forinmates drafting legal papers. The Court rhetorically raised and de-feated the notion that precedent had prohibited restraints to courtaccess, but had not embraced the expenditure of state funds forsuch purposes. 3 1 The Court rebuffed, stating that "[t]he inquiry israther whether law libraries or other forms of legal assistance areneeded to give prisoners a reasonably adequate opportunity to pres-ent claimed violations of fundamental constitutional rights to thecourts." 32 Although the Court conceded that a prisoner needs onlyto delineate the facts behind his complaint in a pro se civil rights orhabeas petition, 33 he requires some legal knowledge to recognize avalid claim. 34 Unlike discretionary appeals which were tied to therecord, habeas corpus petitions often raised important new issues.35

In sum, the meaningful access doctrine before Murray forbadethe states from hindering an indigent convict's communication with

28 312 U.S. 546, 549 (1941) (a Michigan prison could not submit a prisoner's com-

munications or legal documents to multiple prison reviews before sending them to acourt).

29 Wolff v. McDonnell, 418 U.S. 539 (1974) (prison could not hinder inmates fromhelping fellow convicts prepare civil rights petitions); Gilmore v. Lynch, 319 F. Supp.105 (N.D. Cal. 1970), aff'd sub nom, Younger v. Gilmore, 404 U.S. 15 (1971) (meaningfulaccess imposed an affirmative duty on the states to provide adequate law libraries toprisoners); Johnson v. Avery, 393 U.S. 483 (1969) (prison could not prohibit prisonersfrom helping other inmates prepare habeas corpus petitions); Gardner v. California, 393U.S. 367 (1969) (indigent had a right to a free transcript for habeas corpus petitions justas for appeals of right); Draper v. Washington, 372 U.S. 487 (1963) (indigent prisonerpermitted free transcript on appeal of right where taking the appeal did not require atranscript); Griffin v. Illinois, 351 U.S. 12 (1956) (state of Illinois prohibited from mak-ing a defendant's direct appeal contingent upon his providing a bill of exceptions orreport of proceedings).

30 430 U.S. 817 (1977).31 Id. at 825.32 Id.33 Id.34 Id.35 Id.

1194 [Vol. 80


the courts. The doctrine also imposed an affirmative duty to createmeaningful access to the courts through state provided legal docu-ments and research materials or assistance. While suggesting thatstate-supplied counsel would serve the meaningful access require-ment, the Court declined to require states to supply personal attor-neys to indigent prisoners.3 6

III. FACTS

In 1986, Joe Giarratano, a Virginia death r6w prisoner,37 filed apro se civil rights complaint3 8 for declaratory and injunctive reliefagainst the state of Virginia in the Federal District Court for theEastern District of Virginia.39 He claimed that the state of Virginiahad a constitutional obligation under article I, the sixth amendment,the eighth amendment, and the due process clause of the fourteenthamendment to provide counsel for death row inmates pursuing statepostconviction relief.40

Because the Constitution requires states to provide to prisonersmeaningful access to the courts through law libraries or other legalassistance,4' the district court interpreted the Constitution also to

36 Id. at 832.37 Giarratano was sentenced to death in 1979 for rape and murder. Giarratano v.

Commonwealth, 220 Va. 1064, 266 S.E.2d 94 (1980).38 Giarratano based his complaint on 42 U.S.C. § 1983:Every person who, under color of any statute, ordinance, regulation, custom, orusage, of any State or Territory or the District of Columbia, subjects, or causes to besubjected, any citizen of the United States or other person within the jurisdictionthereof to the deprivation of any rights, privileges, or immunities secured by theConstitution and laws, shall be liable to the party injured in an action at law, suit inequity, or other proper proceeding for redress. For the purposes of this section,any Act of Congress applicable exclusively to the District of Columbia shall be con-sidered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (1982).The other principle type of postconviction proceeding is a writ of habeas corpus.

Federal habeas corpus review has been codified in 28 U.S.C. § 2254. A successful mo-tion under this statute requires that the individual be imprisoned against the Constitu-tion, laws or treaties of the U.S., and that she first exhaust state remedies by raising thequestion at issue in all possible state procedures. 28 U.S.C. § 2254(a), (d) (1982).

39 Giarratano v. Murray, 668 F. Supp. 511 (E.D. Va. 1986).40 Id. When other death row inmates intervened, the district court certified the

group as a class. The formal description of the class was as follows:[A]II persons, now and in the future, sentenced to death in Virginia, whose

sentences have been or are subsequently affirmed by the Virginia Supreme Courtand who either (1) cannot afford to retain and do not have attorneys to representthem in connection with their post-conviction proceedings, or (2) could not affordto retain and did not have attorneys to represent them in connection with a particu-lar post-conviction proceeding.

Id. at 512.41 This right was first enunciated in Bounds v. Smith, 430 U.S. 817 (1977). See supra

note 30 and accompanying text.

1990] 1195


require appointed counsel for death row postconviction actions.42

The district court highlighted the unique position of Virginia deathrow inmates: they faced a limited time in which to prepare petitions,confronted complex legal procedures, and suffered the strain ofpreparing themselves and their families for the imminent execu-tion. 43 These unique circumstances compelled the district court tofind law library access insufficient to satisfy meaningful access re-quirements. 44 Likewise, both institutional lawyers serving multipleprisoners on a limited basis and personal attorneys appointed aftera prisoner filed a nonfrivolous petition fall short of satisfying theconstitutional mandate. 45 Too few institutional attorneys serve toomany inmates in too limited a fashion. 46 Furthermore, attorneyscome into the litigation too late to do a major portion of the workwhen the court appoints them after the prisoner files a nonfrivolousmotion.47 Finally, the district court argued that additional appoint-ment rights would not impose substantial financial burdens becausethe state already had appointed counsel to nonfrivolous claims. 48

The district court limited its holding to state habeas corpus pe-titions because the underlying right to state appointed counsel ex-cludes federal discretionary appeals.49 This limitation followed thetenet that states should not fund counsel for an individual seekingrelief under a federal statute.50 The district court added that ex-haustion requirements would supply federal courts with the advan-tage of earlier materials on all issues possibly raised. 5'

The Commonwealth appealed the district court's requirement

42 Giarralano, 668 F. Supp. at 516.43 Id. at 513.44 Giarratano v. Murray, 668 F. Supp. 511, 513 (E.D. Va. 1986).45 Id. at 514.46 The district court stated:

Currently there are seven institutional attorneys attempting to meet the needs ofover 2,000 prisoners. No pretense is made by the defendants in this case that thesefew attorneys could handle the needs of death row prisoners in addition to provid-ing assistance to other inmates.... Moreover, they are not hired to work full time;they split time between their private practice and their institutional work. ...

... The scope of assistance these attorneys provide is simply too limited. Theevidence indicated that they do not perform factual inquiries of the kind necessi-tated by death penalty issues. They act only as legal advisors or, to borrow thephrase of one such attorney, as "talking law books."

Id.47 Id.48 The district court also noted that the burden would be slight because of the small

number of prisoners placed on death row each year. Id.49 Giarratano v. Murray, 668 F. Supp. 511, 516 (E.D. Va. 1986); see Ross v. Moffit,

417 U.S. 600 (1974); see supra note 16 and accompanying text.50 Giarratano, 668 F. Supp. at 516.51 Id.

[Vol. 801196


of state appointed attorneys for state capital postconviction ap-peal.52 The class of prisoners cross-appealed the district court's re-fusal to include a right to assistance of counsel in federal appeals. 53

Finding the district court's factual findings clearly erroneous, theCourt of Appeals for the Fourth Circuit reversed. 54 The courtdeemed Finley 55-decidedafter the district court's opinion in Giar-ratano-controlling precedent.56 It dismissed Bounds as not entailinga right to counsel.57 Finally, the court limited consideration of any"significant constitutional difference" of death penalty cases to thetrial phase.58

After en banc reconsideration, the circuit court affirmed the dis-trict court's decision. 59 The circuit court determined that the lower• court's findings were not clearly erroneous. 60 Finley had neither in-volved meaningful access, addressed Bounds,6 1 nor discussed thedeath penalty. 62 Finally, the court acknowledged that society's spe-cial interest in properly imposing death sentences required consid-eration of the punishment's "significant constitutional difference." 63

The United States Supreme Court granted certiorari to recon-cile the circuit court's holding with Finley, and thereby determinewhether or not a constitutional right to counsel exists in a postcon-viction proceeding.64

52 Giarratano v. Murray, 836 F.2d 1421 (4th Cir. 1988).53 Id.54 Id. at 1422.55 Pennsylvania v. Finley, 481 U.S. 551 (1987). See supra note 17 and accompanying

text for a discussion of Finley.56 Giarratano, 836 F.2d at 1423-25.57 Id. at 1424. The district court stated:In Bounds the issue was access to "sources of legal knowledge" to prepare meaning-ful papers ... and the Court explicitly stated that, for inmates seeking to file post-conviction papers, meaningful access to the courts can be satisfied by either provid-ing adequate law libraries or "adequate assistance from persons trained in the law."

Id. (citations omitted).58 Id. at 1425.59 Giarratano v. Murray, 847 F.2d 1118 (4th Cir. 1988).60 Id. at 1121. The circuit court stated:The district court made findings of fact based upon the record which indicated thatVirginia was not in compliance with constitutional rights of access to the courts.Under Anderson v. City of Bessemer City, 470 U.S. 564 ... (1985), we cannot saythese findings of fact are clearly erroneous.

Id. (citation omitted).61 Bounds v. Smith, 430 U.S. 817 (1977). See supra note 30 and accompanying text

for a discussion of Bounds.62 Giarratano, 847 F.2d at 1122.63 Id.64 Murray v. Oiarratano, 109 S. Ct. 303 (1988); Pennsylvania v. Finley, 481 U.S. 551

(1987).

11971990]


IV. SUPREME COURT OPINIONS

A. THE PLURALITY

Writing for the plurality, ChiefJustice Rehnquist 65 held that theConstitution requires state appointed counsel only for trials and ap-peals of right, not for voluntary postconviction proceedings. 66 Hefirst delineated the history of an indigent defendant's right to coun-sel so as to reveal an expanding right to assistance limited only.byRoss v. Moffitt and Finley.67 Addressing the relevance of Finley to cap-ital postconviction rights, the Chief Justice conceded the existenceof special capital constitutional restraints. 68 These standards, how-ever, have been limited to the trial level.6 9 Furthermore, in statecriminal procedures, the Constitution does not require collateral ap-peals which serve a "different and more limited purpose than eitherthe trial or appeal." 70 Instead, the eighth amendment's heightenedprocedural standards for capital trials assures the proper application

65 Justices White, O'Connor, and Scalia joined Justice Rehnquist's opinion. Murrayv. Giarratano, 109 S. Ct. 2765 (1989).

66 Id.67 The Chief Justice cited Finley, 481 U.S. at 551 (the fourteenth amendment does

not mandate state appointed counsel in postconviction proceedings); Ross v. Moffitt,417 U.S. 600 (1974) (no constitutional right to counsel for discretionary appeals to statesupreme courts or to the United States Supreme Court); Gideon v. Wainwright, 372U.S. 335 (1963) (extends the right to assistance of counsel to include state felony cases);Douglas v. California, 372 U.S. 353 (1963) (right to assistance of counsel embracesmandatory appeals); Griffin v. Illinois, 351 U.S. 12 (1956) (the Constitution requires thestate of Illinois to provide an indigent defendant with the report of proceeding or bill ofexceptions necessary for his direct appeal).

68 Murray, 109 S. Ct. at 2769 (citing Beck v. Alabama 447 U.S. 625 (1980) (because ofthe "significant constitutional difference between death penalty and lesser punish-ments," Alabama could not impose a death sentence when the jury had not been in-structed on lesser included offenses); Eddings v. Oklahoma, 455 U.S. 104 (1982) (thestate court had to consider evidence of troubled family background and emotional dis-turbance before sentencing a 16 year old to death); Lockett v. Ohio, 438 U.S. 586 (1978)(noting the "qualitative difference" between death sentences and other penalties, theCourt required state judges to consider any proffered mitigating factors before imposingcapital punishment)).

69 Murray, 109 S. Ct. at 2769 (citing Satterwhite v. Texas, 486 U.S. 249 (1988) (apply-ing the "harmless error doctrine" to the admission of psychiatric testimony in capitalsentencing hearings); Ford v. Wainwright, 477 U.S. 399 (1986) (the eighth amendmentprohibits states from executing an individual who has become insane after his convic-tion); Smith v. Murray, 477 U.S. 527 (1986) (procedural default precludes the raising ofdefenses or errors not raised on direct appeal); Pulley v. Harris, 465 U.S. 37 (1984)(because California trial procedure provided adequate protection, the Court refused torequire proportionality review in appellate proceedings); Barefoot v. Estelle, 463 U.S.880 (1983) (the Florida Court of Appeals did not err when it decided the merits of anappeal together with an application for a stay of execution, even though it did not for-mally affirm the lower court's holding); Wainwright v. Sykes, 433 U.S. 72 (1977)).

70 Murray, 109 S. Ct. at 2770.

1198 [Vol. 80


of the death penalty. 71 The rule in Finley, therefore, applies uni-formly in capital and non-capital cases. 72

The plurality denied that the state would have saved funds byproviding attorneys to prisoners before they filed habeas corpusmotions. 7 Although attorneys might have weeded out frivolous pe-titions, Chief Justice Rehnquist rejected this argument as an im-proper basis for constitutional adjudication.7 4 He also suggestedthat the state might invest in a better direct appellate process to re-duce the number of genuine issues arising for postconvictionproceedings. 75

Denying any tension between Bounds and Finley, Chief JusticeRehnquist eschewed as "strange jurisprudence" the lower court'suse of the 1977 Bounds holding to limit the 1987 Finley decision.76

He deemed a limitation based on factual findings "even stranger ju-risprudence" because the districts might then create varying consti-tutional rights to counsel. 77 These jurisdictional variations wouldbecome firmly entrenched because appellate courts could reviewthem only on the "clearly erroneous" standard applicable to factualfindings. 78 Finally, he argued that a factual-based constitutionalstandard would contravene the categorical approach to right-to-counsel cases used since Gideon.79

Therefore, the Chief Justice extended the Finley Court's denialof a constitutional right to counsel in discretionary appellate pro-ceedings to capital cases and forms of collateral review other thandiscretionary appeals. 80 He thereby limited the Bounds meaningfulaccess doctrine to the degree it remained inconsistent with hisholding.

8 '

71 Id.72 Id.73 Id at 2771.74 Id.75 Id.76 Id.77 Id.78 Id.79 Id. (citing Powell v. Alabama, 287 U.S. 45 (1932); Griffin v. Illinois, 851 U.S. 12

(1956); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353(1963); Ross v. Moffitt, 417 U.S. 600 (1974); Pennsylvania v. Finley, 481 U.S. 551(1987); Betts v. Brady, 316 U.S. 455 (1942), overruled, Gideon v. Wainwright, 372 U.S.335 (1963)).

80 Murray v. Giarratano, 109 S. Ct. 2765, 2772 (1989).81 Id.

1990] 1199

1200 SUPREME COURT REVIEW [Vol. 80

B. THE CONCURRING OPINIONS

1. Justice O'Connor's Concurrence

Concurring, Justice O'Connor agreed that no constitutional orprecedential authority requires state appointed counsel in postcon-viction proceedings. 82 Although acknowledging the difficulties fac-ing death row inmates seeking collateral review, she championedthe discretion given to the states by Bounds.83 The state legislatureswould have to formulate any further requirements.8 4

2. Justice Kennedy's Concurrence

Concurring, Justice Kennedy85 agreed that the states could sup-ply meaningful access to the courts in many ways.8 6 Because impos-ing one method of achieving this access might preclude betteroptions, he claimed that the choice belongs to the state legislatures,which are better able than the Court to study the policy ramifica-tions of the various choices. 87 Furthermore, Virginia did not violatethe Court's meaningful access requirements.8 8 Each Virginia in-mate had obtained counsel before pursuing postconvictionproceedings. 89

Justice Kennedy disagreed with the plurality's diminution of therole of postconviction proceedings in the criminal justice process. 90

He admitted that the complexity of such proceedings greatly in-creases the difficulty of success without counsel. 9' Thus, he re-stricted his agreement with the plurality to the facts of this case.9 2

82 Id. (O'Connor, J., concurring) (citing Finley, 481 U.S. at 551).83 Bounds v. Smith, 430 U.S. 817 (1977).84 Murray, 109 S. Ct. at 2772 (O'Connor, J., concurring). Justice O'Connor elabo-

rated that "[b]eyond the requirements of Bounds, the matter is one of legislative choicebased on difficult policy considerations and the allocation of scarce legal resources. Ourdecision today rightly leaves these issues to resolution by Congress and the state legisla-tures." Id. (O'Connor, J., concurring).

85 Id. (Kennedy, J., concurring). Justice O'Connor joined Justice Kennedy, concur-ring in judgment.

86 Id. (Kennedy, J., concurring).87 Id. at 2773 (Kennedy, J., concurring).88 Id. (Kennedy, J., concurring).89 Id. (Kennedy, J., concurring).90 Id. at 2772 (Kennedy, J., concurring).91 Id. (Kennedy, J., concurring). Justice Kennedy stated, "The complexity of our ju-

risprudence in this area, moreover, makes it unlikely that capital defendants will be ableto file successful petitions for collateral relief without the assistance of persons learnedin the law." Id. (Kennedy, J., concurring).

92 Id. (Kennedy, J., concurring). "On the facts and record of this case, I concur in thejudgement of the court." Id. at 2773.


C. THE DISSENT

Dissenting, Justice Stevens93 argued that the fourteenth amend-ment requires state appointed attorneys for the respondents. 94

Viewing right-to-counsel and meaningful access cases as a singleline of authority,9 5 he highlighted three factors unique to thesedeath row inmates which triggers their right to appointed counsel.First, the dissent emphasized capital cases' special procedural treat-ment.96 Maintaining that the trial and appeal of right does not as-sure accuracy in such an important and irreversible matter, he calledfor the continuation of these heightened procedural standardsthrough the collateral appeal. 97 Justice Stevens dismissed Finley asirrelevant because it did not involve the death penalty.9 8

Second, the significant role of collateral appeals in Virginia'scapital trials further distinguishes Finley, a discretionary appeal,from a non-capital conviction. Postconviction proceedings providethe first opportunity to raise claims procedurally barred on directreview because trial counsel neglects to raise them.99 Moreover,raising a claim, which a state court procedurally bars during collat-eral appeal, requires that the defendant show "cause for the defaultand resultant prejudice, or that failure to review [would] cause fun-

93 Id. (StevensJ, dissenting). Justices Brennan, Marshall, and BlackmunjoinedJus-tice Stevens in his dissent.

94 Id. (Stevens, J., dissenting).95 Id. at 2774 (Stevens, J., dissenting). Justice Stevens stated:

Far from creating a discrete constitutional right, Bounds constitutes one part of ajurisprudence that encompasses "right-to-counsel" as well as "access-to-courts"cases. Although each case is shaped by its facts, all share a concern, based upon theFourteenth Amendment, that accused and convicted persons be permitted to seeklegal remedies without arbitrary governmental interference.

Id. (Stevens, J., dissenting) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987); Ross v.Moffitt, 417 U.S. 600 (1974); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v.California, 372 U.S. 353 (1963); Lane v. Brown, 372 U.S. 477 (1963) (striking down anIndiana law making it possible for a wealthy individual to appeal a denial of a writ ofcorum noblis, while an indigent had to first receive the aid of a public defender); Smith v.Bennett, 365 U.S. 708 (1961) (Indiana cannot make a habeas corpus petition contingenton a four dollar filing fee); Griffin v. Illinois, 351 U.S. 12 (1959)).

96 Murray, 109 S. Ct. 2765, 2777 (1989) (Stevens, J., dissenting).97 Id. at 2778 (Stevens, J., dissenting). Justice Stevens commented:There is, however, significant evidence that in capital cases what is ordinarily con-sidered direct review does not sufficiently safeguard against miscarriages ofjusticeto warrant this presumption of finality. Federal habeas courts granted relief in only0.25% to 7%o of non-capital cases in recent years; in striking contrast, the successrate in capital cases ranged from 60% to 70%. Such a high incidence of uncor-rected error demonstrates that the meaningful appellate review" necessary in a capi-tal case extends beyond the direct appellate process.

Id. (Stevens, J., dissenting).98 Id. at 2776 (Stevens, J., dissenting).

99 Id. at 2778 (Stevens, J., dissenting).

1990] 1201


damental miscarriage of justice."' 0 0 These factors made state col-lateral appeal crucial to the capital conviction process.' 0 '

Third, Justice Stevens reiterated the circuit court's findings thatdeath row inmates had been largely unable to mount successful col-lateral attacks. 10 2 Echoing the meaningful access cases, he con-cluded that Virginia's refusal to appoint counsel until after anonfrivolous petition had been filed failed to "assure its indigentdeath row inmates an adequate opportunity to present their claimsfairly."' 03 Finally, Justice Stevens claimed that the state has nocountervailing interest in denying counsel to the respondents. 0 4

V. ANALYSIS

Because precedent fails to compel the denial of appointedcounsel for death row inmates and because death row prisoners ex-perience unique conditions, the Court should have extended thenatural trend of meaningful access cases to include appointed coun-sel in state death penalty collateral appeals. 0 5 Furthermore, thelack of state interest to withhold counsel makes inconceivable theplurality's denial of state appointed attorneys beyond a trial of right.

A. PRECEDENT FAILS TO COMPEL THE PLURALITY'S DENIAL OF THE

RIGHT TO ASSISTANCE OF COUNSEL IN CAPITAL COLLATERAL

PROCEEDINGS

The plurality failed to recognize manifest tensions between theBounds meaningful access and Finley right to counsel doctrines. 10 6

The latter, 10 7 relying largely on Ross, denies constitutional rights to

100 Id. at 2779 (Stevens, J., dissenting).101 Id. (Stevens, J., dissenting).102 Id. (Stevens, J., dissenting).103 Id. at 2780 (Stevens, J., dissenting).104 Id. at 2781 (Stevens, J., dissenting) (citing Mathews v. Eldridge, 424 U.S. 319

(1976) (due process does not require an evidentiary hearing in a disability benefitpretermination case)). Justice Stevens mentioned that Virginia already appointed coun-sel after the submission of nonfrivolous petitions, and that there were only 32 inmateson death row. Thus, the state would not incur large additional costs in supplying attor-neys. Furthermore, because state appointed counsel would reduce the burden of frivo-lous or multiple petitions, Virginia would receive a net benefit from appointingattorneys before the filing of any pro se motion. Id. at 2781. (Stevens, J., dissenting).

105 See Mello, Is There a Federal Constitutional Right to Counsel in Capital Post-ConvictionProceedings?, 79J. CRIM. L. & CRIMINOLOGY 1065 (1989).

106 See Mlurray, 109 S. Ct. at 2771. The appellate court, however, realized the differ-ences between Finley and Bounds. Giarratano v. Murray, 847 F.2d 1118, 1122 (4th. Cir.1988), rev'd, 109 S. Ct. 2765 (1989). Finley did not deal with meaningful access, it didnot address the Bounds meaningful access doctrine, and it did not involve the death pen-alty. Id.

107 See supra note 17 and accompanying text for an account of Finley.

1202 [Vol. 80


assistance of counsel after mandatory appeals of right are com-pleted. 10 8 The equal protection and due process doctrines dis-cussed in Powell and Douglas extend to only one mandatoryappeal. t0 9 In the meaningful access cases such as Bounds, however,the accused enjoys a "reasonably adequate opportunity to presentclaimed violations of fundamental constitutional rights to thecourts."' 1 0 The states must protect this right even if it means sup-plying law libraries or other types of legal assistance."'I Unlike theright to assistance of counsel, the meaningful access doctrine ex-tends to postconviction procedures." 12

Because the plaintiffs in Murray were seeking collateral relief af-ter mandatory appeals, the Finley line seems determinative of theirrights to assistance of counsel. Special characteristics of death rowinmates, however, make law libraries or institutional attorneys insuf-ficient to meet the Bounds requirement of meaningful access. Thus,the Finley and Bounds lines of precedent plausibly reach opposite re-sults in cases such as Murray. 13

The Court's list of special procedures applicable to capital trialsbut not to appeals 14 also fails to support a denial of counsel. Os-tensibly, this list of examples rejects a death row petitioner's specialrights based solely on the imposition of the death penalty. Thelower court's extension of the Bounds meaningful access doctrine re-quired that death row inmates receive, special treatment. Otherwise,the lower court would have had to argue for the much broaderproposition that all capital convicts, or all convicts, have a constitu-tional right to counsel on collateral appeal.

Although somewhat meritorious, the Court's argument thatspecial safeguards protect only the trial phase of a capital proceed-ing fails to justify denying the assistance of counsel to the Murrayprisoners."15 The Court has stated that death penalty trials are

108 Pennsylvania v. Finley, 481 U.S. 551 (1987).109 See supra notes 6 and 12 and accompanying text for discussions of Powell and

Douglas.11O Bounds v. Smith, 430 U.S. 817, 825 (1977).1'I Id.112 Id.113 Therefore, one can conclude that the Court chose to cut the right to counsel line

short, possibly because of cost considerations, while the meaningful access line contin-ued its natural development.

114 See supra note 69 and accompanying text for an enumeration of these procedures.115 Likewise, the Court's argument that the categorical approach present since Belts

prohibits an exception for attorney appointment on capital collateral appeals does notwithstand scrutiny. The Court's meaningful access line of cases has never adhered tothis categorical doctrine. See Bounds, 430 U.S. at 817. The Court in Bounds stated, "Wehold, therefore, that the fundamental constitutional right of access to the courts requires

12031990]


unique only in some respects."t 6 Therefore, the Court simultane-ously could have remained true to precedent, required state ap-pointed attorneys for indigent death row inmates, and avoided any"floodgates" objections. Given the arguably fundamental nature ofrepresentation by counsel in assuring other legal rights, the Court'sfailure to require state appointed counsel is indefensible."17

The plurality's categorization of collateral appeal as civil or sec-ondary' "8 fails to limit the meaningful access doctrine to appeals ofright. Under the Court's theory, due process does not involve coun-sel on discretionary appeal because the convicted individual, ratherthan the state, initiates the proceeding. 1 9 However, the state must

.provide an attorney on the first appeal of right, which the prisoner

prison authorities to assist inmates in the preparation and filing of meaningful legalpapers by providing prisoners with adequate law libraries or adequate assistance frompersons trained in the law." Id. at 828. The Court then eschewed any categorical man-date. "It should be noted that while adequate law libraries are one constitutionally ac-ceptable method to assure meaningful access to the courts, our decision here, as inGilmore, does not foreclose alternative means to achieve that goal." Id. at 830. Instead,the Court reiterated its contention that meaningful access "to the courts is the touch-stone." Id. at 823. IndeedJustices Kennedy and O'Connor disagreed with the pluralitybecause they viewed a right to counsel as too categorical under the Bounds holding. Seesupra note 82 and accompanying text for Justice O'Connor's disagreement.

116 See Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("Direct appeal is the primaryavenue for review .... The role of federal habeas proceedings, while important in assur-ing that constitutional rights are observed, is secondary and limited."); Wainwright v.Sykes, 433 U.S. 72 (1977) (procedural default situations in which an accused may waiveobjections by not raising them at the appropriate time).

But see Ford v. Wainwright, 477 U.S. 399 (1986) (refusing to use a narrower eighthamendment standard when determining whether a convicted individual was competentto be executed):

Although the condemned prisoner does not enjoy the same presumptions accordeda defendant who has yet to be convicted or sentenced, he has not lost the protectionof the Constitution altogether; if the Constitution renders the fact or timing of hisexecution contingent upon establishment of a further fact, then that fact must bedetermined with the high regard for truth that befits a decision affecting the life ordeath of a human being. Thus, the ascertainment of a prisoner's sanity as a predi-cate to lawful execution calls for no less stringent standards than those demanded inany other aspect of a capital proceeding.

Id. at 411.117 The initial circuit court opinion pointed out the inconsistency inherent in a class of

death row inmates making the argument that they had no access to the courts. Giar-ratano v. Murray, 836 F.2d 1421, 1423 (4th Cir. 1988). The circuit court dissent, how-ever, pointed out Giarratano's extraordinary abilities and that this was a lesscomplicated civil rights action, not a habeas corpus petition. Id. at 1430 (Hall, J.,dissenting).

118 See, e.g., Barefoot v. Estelle, 463 U.S. 880, 887 (1983) ("The role of federal habeasproceedings, while important in assuring that constitutional rights are observed, is sec-ondary and limited."); Fay v. Noia, 372 U.S. 391, 423 (1963) (habeas corpus is civil innature).

119 Ross v. Moffitt, 417 U.S. 600, 610 (1974).

[Vol. 801204


also initiates. 120 This internally inconsistent argument fails as a rea-sonable justification for limiting state appointed counsel to appealsof right. 121

B. REALISTIC CONDITIONS PRISONERS FACE CALL FOR THE RIGHT TO

THE ASSISTANCE OF COUNSEL IN CAPITAL COLLATERAL

PROCEEDINGS

Because many death row inmates do not have the intellectualcapacity or skills to pursue collateral relief, meaningful access re-quires assistance beyond Virginia's law libraries, staff attorneys, anddiscretionary appointed attorneys. 122 At least one federal court hasraised concerns over the general inability of prisoners to file mean-

120 See Douglas v. California, 372 U.S. 353 (1963).121 It also does not follow that Pennsylvania v. Finley, 481 U.S. 551 (1987), should

necessarily extend the Ross discretionary appeal rule to all collateral attacks. The Courtin Bounds stated:

By contrast in this case, we are concerned in large part with original actions seekingnew trials, release from confinement, or vindication of fundamental civil rights.Rather than presenting claims that have been passed on by two courts, they fre-quently raise heretofore unlitigated issues. As this Court has "constantly empha-sized," habeas corpus and civil rights actions are of "fundamental importance.., inour constitutional scheme" because they directly protect our most valued rights.

Bounds v. Smith, 430 U.S. 817, 827 (1977) (quoting Johnson v. Avery, 393 U.S. 483,485 (1969); Wolff v. McDonnell, 418 U.S. 539, 579 (1974)). Furthermore, the dissent inMurray noted that capital litigation tended to continue after the appeal of right, makingmeaningless any distinction between trial or appeal and collateral appeals. Murray v.Giarratano, 109 S. Ct. 2765, 2778 (1989) (Stevens, J., dissenting). The dissent stated,"Nor can we overlook our experience that capital litigation proceeds apace after affirm-ance of a conviction. With the vigorous opposition of state legal departments, capitaldefendants seek not only review of state and federal judicial decisions, but also relieffrom state governors and parole boards." Id. at 2778 n. 12 (Stevens, J., dissenting).

122 Giarratano v. Murray, 847 F.2d 1118 (4th Cir. 1988); see also Mello, Post-ConvictionAttorney Crisis on Death Row, 37 AM. U.L. REv. 513, 549 (1988). The Giarratano Courtconsidered the complexity of habeas corpus cases, the limited time available in which tofile petitions, and the emotional strain associated with impending death.

Mello discussed the intellectual ability and skills of prisoners in general:A 1968 study of federal and state prisons found that in most states the averageprisoner had-only eight years of education. In states with large death row popula-tions, the figures were even more troubling: 49% of Florida inmates completed lessthan nine years of education. Louisiana inmates averaged six years of schooling,and Texas inmates had an average educational level of 5.1 years. The average in-mate IQ in Alabama and Louisiana was eighty, while in Texas it was eighty-six.Thirty percent of South Carolina inmates had IQs less than eighty, while 49% ofNorth Carolina inmates had IQs less than ninety. The study found that prisonersare three times more likely to be mentally disabled than members of the generalpopulation.

Mello, supra, at 549.Mello found two additional reasons for a right to counsel on capital collateral ap-

peal. Mello, supra note 105, at 1065. First, the use of habeas corpus is a "dialectic"between state and federal courts to delineate the boundaries of asserted rights. Id. at1080. Both sides must have counsel to maintain the adversarial discourse. Id. Second, aneed for extreme care exists when imposing death as a punishment. Id. at 1099. These


ingful habeas corpus and civil rights claims. 123 Poorly written butmeritorious petitions with meaningless string cites and legal phrasescould easily fall through the judicial screening process.' 24 More-over, claims that survived the initial weeding procedure are likely tohave faltered when prisoners failed to amend complaints or other-wise respond to the court. 125 Prisoners who did not speak Englishfaced an even greater barrier in gaining access. 126

Furthermore, commentators note an increasing judicial adher-ence to "abuse of the writ" doctrines 27 and expedited proceduresfor considering multiple habeas petitions. 2 8 These factors combinewith inmates' deficient legal skills, habeas law's inherent complexity,and death row prisoners' peculiar emotional problems and time lim-itations to leave meaningful access realistically impossible. Addi-tionally, as the dissent acknowledged, Virginia's capital proceduresmake the need for assistance of counsel more compelling becausemany issues arise only in postconviction appeals. 129

two reasons in addition to the general trend of right to counsel and meaningful accesslines of authority compel the appointment of counsel. Id. at 1102.

123 Hooks v. Wainwright, 536 F. Supp. 1330, 1344, 1345 (1982), rev'd, 775 F.2d 1433(11 th Cir. 1985) (acknowledging the lower court's factual findings, the court reversed onits reading of Bounds' meaningful access requirements), cert. denied, 479 U.S. 913 (1986).The district court gave a few examples of particularly meaningless petitions. One borethe title, "The Wave-Like Form of Fronds." Hooks, 536 F. Supp. at 1344-45. The courtalso gave a representative sample of a civil rights claim:

Mr. Martin: being vocational counselor, are the essence of conspiracy. As to why Mar-shall, are locked up anyway. Because he took inmate: Joseph Nelson, 854467, Theinmate, he is locked up for and brought from city D.O.T. to county D.O.T. Afterfailing to get along with his fellow inmates, on city D.O.T. Prior to January 7th,1982, plaintiff, Marshall, had worked on county D.O.T. without any problems at all.Mr. Martin placed Nelson, on county D.O.T. to harass and to intimidate Marshall,because he had a civil suite against Mr. Martin's boss man, Mr. Wainwright.

Id. at 1344 n.26 (emphasis in original).124 Id. at 1345.125 Id.126 Id. at 1344.127 Mello, supra note 122, at 552; see also, Rose v. Lundy, 455 U.S. 509 (1982) (district

court must dismiss a habeas corpus petition which includes both exhausted andunexhausted claims); Wainwright v. Sykes, 433 U.S. 72 (1977) (construing 28 U.S.C.§ 2254, to uphold a Florida law barring procedurally waived issues absent a showing ofcause and actual prejudice).

128 Smith v. Murray, 477 U.S. 527 (1986) (application of procedural default rules infederal capital habeas appeals); Barefoot v. Estelle, 463 U.S. 880 (1983) (expedited pro-cedures for multiple habeas petitions). Although these arguments may support the ap-pointment of counsel on federal habeas petitions, attorneys in state collateralproceedings would ensure that only well presented and more meritorious claimsreached the federal level.

129 Justice Stevens stated:

In contrast to the collateral process discussed in Finley, Virginia law contemplatesthat some claims ordinarily heard on direct review will be relegated to postconvic-

1206 [Vol. 80


C. THE EFFICIENT AND JUST SOLUTION IS THE RIGHT TO THE

ASSISTANCE OF COUNSEL IN CAPITAL COLLATERAL

PROCEEDINGS

Although the arbitrary line drawn between direct and collateralappeals connotes underlying concerns over the efficient operationand fairness of capital convictions, the Court could have avoidedsuch difficult choices. As to efficiency, current lengthy and repeti-tive collateral appeal practices diminish the retributive and deter-rent purposes of capital punishment.1 30 Both society and potentialcriminals do not closely relate crimes warranting capital punishmentwith the punishment given.13 1 In addition, the burgeoning numberof federal habeas petitions calls for efficient habeas procedures inboth state and federal courts.' 32

Habeas petitioners who obtain counsel, however, have a highchance of obtaining some form of relief.133 Thus, the increase inpetitions is not pure abuse of the process. Apparently, significanterror exists in capital trials and appeals. Denying to a death rowinmate an attorney on collateral appeal is especially unjust. Toolarge a chance exists that constitutional error occurred in the lowercourts and that the prisoner may receive some relief on appeal.

tion proceedings. Claims that trial or appellate counsel provided constitutionallyineffective assistance, for instance, usually cannot be raised until this stage....

... The postconviction procedure in Virginia may present the first opportunityfor an attorney detached from past proceedings to examine the defense and to raiseclaims that were barred on direct review by prior counsel's ineffective assistance.

Murray v. Giarratano, 109 S. Ct. 2765, 2778 (1989) (Stevens, J., dissenting).130 Powell, Capital Punishment, 102 HARV. L. REV. 1035, 1041 (1989). FormerJustice

Powell also gave an account of a typical capital trial and appeals process:

[A]fter a bifurcated trial and sentence, the defendant will appeal, first to the stateintermediate appeals court, and then to the state supreme court. The defendantmay at this point file a petition for certiorari in the United States Supreme Court. Ifthe sentence and conviction are approved, the defendant then-often after a con-siderable lapse of time-initiates state habeas review, appeals to the state supremecourt a second time, and again seeks certiorari. Unless relief is obtained, the nextstep is to seek federal habeas review of alleged errors made by the state courts onconstitutional questions. If the federal district court denies relief, the defendant-on the first round-usually will obtain a certificate of probable cause and request astay of execution from the federal court of appeals.

If relief is not obtained, a request for a stay is made to the Supreme Court,usually accompanied by a petition for certiorari.

Id. at 1039.131 Id. at 1041.132 The number of federal habeas petitions has increased from 127 in 1940, to 660 in

1950, to 9542 in 1987. Id. at 1039.133 Mello gives the success rates for state non-capital habeas petitions as ranging from

.25% to 7%. State capital habeas petitions had success rates as high as 60% for allpetitions as of 1986. Federal capital habeas petitions succeeded in 73.2% of the casesreaching the appellate level between 1976 and 1983. Mello, supra note 122, at 520.

1208 SUPREME COURT REVIEW [Vol. 80

Fortunately, the solution does not involve an impossible choicebetween judicial efficiency and acceptable levels of injustice. In-stead, appointing counsel to death row prisoners seeking collateralappeal serves both goals. Counsel appointed early in the proceed-ings helps weed out non-meritorious claims and presents coherentlythose issues raising constitutional questions. 3 4 As a result, the judi-ciary is freed from devoting valuable time to meaningless peti-tions. 135 In addition, a more comprehensive review earlier in theprocess reduces last minute questions and stays of execution.13 6 Fi-nally, society has added assurance that a death sentence is imposedin a constitutionally approved manner where safeguards are pro-vided equally to prisoners.

A simple due process 3 7 analysis places this discussion within aconstitutional framework calling for judicial resolution rather thanmerely leaving the matter to the legislatures. 38 The procedural dueprocess test of Mathews v. Eldridge weighs three factors: the privateinterest at stake, the risk of violating that interest through govern-ment action or possible substitutes, and the government's interestin the matter. 139 According to this test, death row inmates have adue process right to state appointed counsel on collateral appeal.

First, the prisoner in a capital case faces the possibility that thestate will unconstitutionally deprive him of his lif. Second, thenumber of successful collateral attacks and a death row inmate's in-

134 See Hooks v. Wainwright, 536 F. Supp. 1330, 1345 (1982), rev'd, 775 F.2d 1433(1985), cert. denied, 479 U.S. 913 (1986).135 Some may suggest that prisoners would continue filing their own pro se petitions

even if an appointed attorney categorized their claims as futile. The solution is to re-quire the attorney to submit any claim proposed by the death row inmate. The courtswould still enjoy the efficiency of having the non-meritorious claim reduced to perhaps afew crystal clear pages.

136 Powell, supra note 130, at 1040 ("It is only fair to add that a significant part of thedelay has been attributable to the difficulty of obtaining counsel for collateral review.").

137 The dissent states the issue as whether or not due process requires attorney ap-pointments in this case. Murray v. Giarratano, 109 S. Ct. 2765, 2776 (1989) (Stevens,J,dissenting). Mello also recognized an unstated due process analysis in the circuit court'smajority opinion. Mello, supra note 105, at 1072.

138 In her concurring opinion, Justice O'Connor stated that "[b]eyond the require-ments of Bounds, the matter is one of legislative choice based on difficult policy consider-ations and the allocation of scarce legal resources. Our decision today rightly leavesthese issues to resolution by Congress and the state legislatures. Murray, 109 S. Ct. at2772 (O'Connor, J., concurring).

139 Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Ake v. Oklahoma, 470 U.S.68, 76 (1985) (applying the Mathews due process test to appointment of a psychologist ina capital case); Evitts v. Lucey, 469 U.S. 387, 401 (1985) ("In short, when a State opts toact in a field where its action has significant discretionary elements, it must nonethelessact in accord with the dictates of the Constitution-and, in particular, in accord with theDue Process Clause."); Lassiter v. Dep't of Social Servs., 452 U.S. 18 (1981) (applyingdue process test to civil appointment of counsel issues).


ability to represent himself adequately indicate a high probabilitythat constitutional errors may slip through the system. Moreover,appointing counsel before the pro se petition will likely substantiallyaffect individual cases. 140 Third, the states have no net offsettingcosts in providing death row inmates this constitutional safeguard.The cost includes attorneys for only approximately 2000 death rowinmates in all states. 41 The benefit, however, includes a more effi-cient collateral appeals process because fewer frivolous petitionsreach the court. Those reaching the court will more clearly state theasserted claim. 142

Additionally, an efficient and swifter capital adjudication pro-cess better serves both the deterrent and retributive justifications ofthe death penalty. 143 Criminals may see the death penalty as a morereal possibility. 144 Society will more closely associate a crime withits punishment. 45 Finally, the courts will have the appearance of

140 The presence of counsel substantially aids a habeas corpus petitioner in gainingrelief. One study found the presence of counsel gave a petitioner a chance of relief 15times greater than the chance of relief given a pro se applicant. Mello, supra note 122, at566.

141 Id. at 515. As Mello points out, the trial court did not see as significant the cost ofappointed attorneys. Virginia already appointed attorneys for those who could success-fully file a nonfrivolous petition. Mello, supra note 105, at 1073. See Giarratano v. Mur-ray, 668 F. Supp. 511, 515 (E.D. Va. 1986). Similarly, counsel for respondents arguedagainst the proposition that a right to counsel would become a right to effective counsel,and yet another ground for further collateral attack. Brief for Respondent at 17, Murray(No. 88-411). Instead, a United States Court of Appeals for the Fourth Circuit decisionbased on the Giarralano trial court opinion held that the collateral petitioner had a rightto counsel, but not effective counsel. Whitley v. Muncy, 823 F.2d 55, 56 (4th Cir.), cert.denied, 483 U.S. 1034 (1987). However accomplished, the courts could avoid the "flood-gates" specter without sacrificing constitutional rights.

142 With this safeguard in place, the Court could conceivably limit further the use ofinefficient collateral appeals if it chose to do so. Similarly, these safeguards would allowlegislative solutions to habeas corpus abuses without the danger of unfavorable courtreview.

143 See Powell, supra note 130, at 1041.144 Id. FormerJustice Powell stated that "[d]elay certainly robs the penalty of much of

its deterrent value, 'since the deterrent force of penal laws is diminished to the extentthat persons contemplating criminal acitivity believe there is a possibility that they willescape punishment through repetitive collateral attacks.'" Id. (quoting Kuhlmann v.Wilson, 477 U.S. 436, 452-53 (1986) (Powell, J., plurality opinion)).

In Gregg v. Georgia, 428 U.S. 153, 185-86 (1976) (Stewart, Powell, and Stevens,JJ.,plurality opinion), reh'g denied, 429 U.S. 875 (1976), the plurality stated:

We may nevertheless assume safely that there are murderers, such as those who actin passion, for whom the threat of death has little or no deterrent effect. But formany others, the death penalty undoubtedly is a significant deterirent. There arecarefully contemplated murders, such as murder for hire, where the possible pen-alty of death may well enter into the cold calculus that precedes the decision to act.

Id.145 The instinct for retribution is part of the nature of man, and channeling thatinstinct in the administration of criminal justice serves an important purpose in pro-moting the stability of a society governed by law. When people begin to believe

1990] 1209


fairness from which they derive much of their power. Thus, dueprocess calls for the appointment of counsel in state death row col-lateral appeals.

VI. CONCLUSION

The plurality's decision in Murray fails to offer to death row in-mates a constitutional right to meaningful access to the courts asdefined in Bounds.146 Rather than giving a useful policy justificationfor its holding, the plurality chose to bury its reasoning in a techni-cal and questionable treatment of the assistance of counselprecedent.

The plurality should have recognized the continuity in the rightto assistance of counsel and meaningful access doctrines and ex-tended the right to include state collateral appeals. Both the dueprocess and equal protection clauses of the sixth and fourteenthamendments and the inability of death row inmates to access mean-ingfully the courts compels this result. Taking an individual's life istoo important and irreversible a state action to allow without theprocedural safeguard of state appointed attorneys for indigentdeath row inmates pursuing a crucial part of the criminal adjudica-tion process.

DONALD P. ZEITHAML, JR.

that organized society is unwilling or unable to impose upon criminal offenders thepunishment they "deserve," then there are sown the seeds of anarchy-of self-help,vigilante justice, and lynch law.

Furman v. Georgia, 408 U.S. 238, 308 (1972) (Stewart, J., concurring), reh denied, 409U.S. 902 (1972).

146 See supra note 30 and accompanying text for a discussion of Bound.

1210 [Vol. 80

Documents

Sixth and Fourteenth Amendments--Constitutional Right to